http://securejobs.org.au/

I recommend two changes for more secure work.

1. Amend the Fair Work Act to have an effective right to strike.

2. Amend the Fair Work Act to restrict casual and other forms of precarious work to a limited period and apply more secure contracts of employment. Fair Work Australia is to have the discretion to conciliate and arbitrate the transition to the more secure employment contracts.

1. The right to strike

I submit the lawful strike is essential for beginning to enable employees and their unions to respond to dire precarious work of existing capitalist labour relations.

The international capitalist crisis daily worsens putting more pressure on business to further move to precarious and exploitative work.

In response, there is a driving imperative for employees to have the FWA balance the more powerful corporate and government forces by amendments that protect the right to strike.

I have written on this blog for a right to strike, firewalling industrial action for protection for employees and their unions.

I argue the right to strike is vital for employees in all the forms of non-standard work.

Arguments are strong for amendments to the Fair Work Act to protect the right to strike. I urge as necessary the repeal of the Australian Building and Construction Act, and the ABCC functions and powers.

All of the existing provisions from the earlier Workplace Relations Act and Work Choices still in the current repressive regime against strikes are to be deleted.

Instead, a broad legal protection for all forms of industrial action is inserted.

At a minimum, commonly accepted ILO principles protecting the right to strike are to be adopted. The history of such ILO principles and their non-application by Australia is well known in the industrial relations and labour law community.

Similarly, labour law critical analysis by Shae McCrystal ‘The Right to Strike in Australia’. I recommend Keith Ewing’s research on the right to strike and Tania Novitz (see this blog).

There is much criticism of the failure of the current FWA to have an effective right to strike in writings by industrial relations specialists, labour lawyers, the ACTU and unions.

Firewalling the right to strike I submit is essential to assist strategies for secure jobs.

2. Job security in the Fair Work Act

The overall merit evidence from employees’ adverse experiences in precarious work and the unjust impact socially at many levels in the Australian community requires Fair Work Act amendments for job security. Here are some recommendations.

2.1 One amendment is to clearly restrict casual employment to only short periods, such as 4 hours daily and no more than fortnightly.

Then a provision that compels employers and allows employees the transition from existing casualisation to more permanent on-going employment contracts.

Such a provision has bargaining rights for precarious workers to change to secure employment with the terms to be negotiated and agreed. The clear right exists when not being able to reach an agreement for the employee(s) to access conciliation and arbitration from FWA to gain process steps for more permanent work.

The same applies to ending many short-term contracts. After two short term contracts, then the employer is required to move to more permanent, on-going contracts.

Special attention is to support any employee with service e.g. more than seven years who is to be on a permanent contract, as is an existing employee with 10 years before retirement. Other non-standard employment sectors could be protected such as in the disability sector.

2.2 The next new section is to ensure that labour-hire contract provisions are not attractive to employers for lowering costs. The aim is have protections against precarious work in the labour-hire industry.

Such provisions are to ensure the same wages and conditions in the user firm in similar work employees from must be hired permanently for not less than two years. There is a formal written contract with the same rate and benefits. The worker may join the user firm’s union. Labour-hire is to be implemented ‘generally for short-term, supplementary and substitute positions’.
Provisions for transition and
compliance need to be put in place.

2.3 Strengthening enforcement provisions by employees and unions to ensure that employers pay legal wages and comply with all employment conditions of the contracts of employment, with speedy measures for exploited workers to recover wages. Increased penalties and damages against non-complying employers.

2.4 A provision that deems for compliance that legal minimums exist in contracts of employment so that those entitlements can be enforced even if there is no evidence of a written contract of employment.

2.5 Amend the unfair dismissal section so that the right applies to all employees, irrespective of the employee’s status or contract of employment or the size of the employer’s workforce.

The big lie that employers may not employ was made up by Peter Reith’s press secretary and is repeated ad nauseum in the media, but is to be rejected.

Even precarious workers ‘dismissed’ ought to have an opportunity to state their case about why they were unreasonably dismissed before a user friendly FWA conciliator then arbitrator for reinstatement or not.

2.6 For strengthened redundancy provisions in a new minimum entitlement that has a provision for one month’s pay for each year of service for redundant employees. This new minimum deters employers from making employees redundant and assists redundant employees in this recessionary period.

2.7 A specific process provision for precarious workers with non-standard work arrangements to have the legal right to union representation and to be able to organise in unions.

I support the ACTU campaign for Secure Jobs.

As the many issues of insecure work in Australia has overseas the same issues this Inquiry will investigate other countries attempts to deal for greater protection for their employees. I recommend China’s attempt (see this blog).

I urge support for the Independent Inquiry into Insecure Work in Australia

from Dave Noonan CFMEU

Despite our best efforts, the ABCC has received a stay of execution. The legislation introduced by the Labor Government to scrap it was not debated this year, and won’t be back in Parliament until February at the earliest. So the fight continues in 2012.

Some members of the crossbenches have said they need some more time to consider the Bill and we will continue to talk with them and explain the importance of abolishing this throwback to the days of WorkChoices.

Others, such as Bob Katter and Andrew Wilkie support the abolition of the ABCC.

The Greens have indicated that they believe that the legislation should go further by abolishing coercive powers completely.

In the meantime, the conservatives and their attack dogs have been out in force seeking to defend this organisation’s outrageous attacks on working people.

Only last week former ABCC Commissioner, John Lloyd, demanded that new Minister for Workplace Relations Bill Shorten abandon the Government’s commitment to abolish the ABCC.

Lloyd was recently presented with the Charles Copeland Medal by the extreme right wing H.R.Nicolls Society and has been employed by the Institute of Public Affairs, another union basing think tank.

Remember, this is the person who claimed to be an apolitical, unbiased public servant!

This is the same person who held the right to use coercive powers against construction workers, and did so illegally on 203 occasions.

Also in the last week the Parliamentary Library has made this significant observation comparing the fines that may be levied against Qantas to the fines that have been levied against building workers and their unions:

“To put the general and building regulatory systems in perspective, should the Qantas’ actions to ground its airlines be held as illegal industrial action under the Fair Work Act31, the maximum fines it may face (per offence), would be one third the maximum fines (per offence) faced by the CFMEU taking illegal industrial action on building sites. Should public support continue to swing toward the role of tribunals with greater conciliation aims as opposed to having, on balance, greater inquisitional or litigious functions, there may be grounds for the ABCC’s proposed replacement to progress.”

Over 1000 emails were sent to MPs calling for the scrapping of coercive powers within 48 hours of our last message to supporters. This shows the anger the ABCC and its illegal interrogations have provoked among construction workers, their friends and families.

We will be seeking your support for the final campaign to achieve equality for construction workers in early 2012.

www.rightsonsite.org.au

To see earlier posts put in ABCC in search.

Still reads well and now with Gillard’s Fair Work Act the repression of strikes continues.

http://chriswhiteonline.org/2008/09/concerns-for-the-right-to-strike-kevin-rudd/

Public Forum on the 5 October, 2004, to a packed Elder Hall University of Adelaide. Organised by Australian Options with the support of The Dunstan Foundation,the Schools of Law at the University of Adelaide and Flinders University.

The rule of law – what it means and how it affects the rights of people
‘I acknowledge that I speak tonight on Kaurna land. I thank the Dunstan Foundation for making this meeting possible and the law faculties for their aid and I pay respect to Don Dunstan whose leadership gave us the first ever democratically elected Parliament in South Australia, the first Sex Discrimination Act in our country and the first conveyance of land to Aboriginal people in our country.

I speak here as the representative of the broad left journal Australian Options, which was established by people who thought that following what had happened around the world, the left had lost its concept of the way forward and we had to find that way. We have lasted almost ten years, we still think that is the task.

The Rule of Law is a fundamental concept of our society and many others. It existed in the ancient Greek civilisation; in ancient Rome. In Australia we inherited our concepts of the rule from Britain from Magna Carta 1216 and from the Great Revolution of 1688 when Mary, daughter of the fleeing James the Second, returned to England with her husband, William of Orange, and together they accepted the Crown after acknowledging themselves bound by the Declaration of Right. By that Declaration the power of Parliament was secured against the power of the Crown. The Rule of Law was firmly established.

The meaning of the rule is very simple, every member of the society is bound by the law.

It is the function of the Parliament to make the laws and of the courts to interpret the law and apply it to the facts; but if the Parliament disagrees with the interpretation it may by statute amend the law.

The Rule of Law is fundamentally important. It binds us all.

In Australia the position is slightly different from the UK as we chose a Federal organisation, we have a Commonwealth and State Parliament with different powers to make laws and the High Court having power to rule on their validity.

I wish to make it absolutely clear that I support the Rule of Law. It is crucial to any decent society.

Without the Rule of Law the citizens have no idea as to either rights or duties and no idea as to how to enforce their rights, or the limit of their duties.

But I make it equally clear, that it is absolutely wrong to think the Rule of Law is synonymous with the question of fairness or justice to all.

That depends upon the law.

After Magna Carta, Britain was ruled by the Barons and the King in their own interests; after the Great revolution of 1688 by the Whigs the party of the developing trading and commercial class in the interests of their class. The feudal serfs were driven off the land into the cities and towns to work for the developing industries; the land became privately owned farms or was used for factories or mines; the children were employed in factories; the Tolpuddle martyrs were convicted and deported to Australia for forming a trade union; working men were deprived of a vote for the Parliament until early in the 19th century and the women until the 20th century.

The ruling class rules.

I refer to two great developments which have occurred since World War 11:
1) After the war, following so soon after World War 1, there was a profound wish for peace, for decency, for human rights. The United Nations organisation was established. I think we Australians can be quite proud of the part that our government and Dr Evatt played in its formation. On December 10 1948, the UN agreed, without dissent, and published to the world: The Universal Declaration of Human Rights I quote from the Preamble: “Member states have pledged themselves to achieve, in co-operation with the UN, the promotion of universal respect for and observance of human rights and fundamental freedoms.” and it goes on to set out thirty articles or rights, three of which I refer to (briefly):
a) Article 2 : Every one is entitled to these rights irrespective of race;
b) Article 23 : Everyone has the right to work and to form and join a trade union;
c) Article 25 : Everyone has a right to a standard of living adequate for the health and well being of self and family, including food, housing, medical care and social services. I refer later to another Article.
2) On the other hand the economic system which is called capitalism has grown and changed vastly as a result of changes in technology, transport, communication etc. It is now global capitalism, it wields extreme power. The World Bank, The International Monetary Fund, the theories of Friedman and Hayek are all of tremendous influence as is above all, the power of the international corporations.

I remind you of what Don Dunstan said in his last speech at the Adelaide Entertainment Centre, April 21 1998, after referring to the domination of global capital: “Their thesis is that, faced with a globalised economy we must reduce government provision of services to the barest minimum; ensure that services are operating in the interest of private profit; ensure that competition and an unregulated market govern production and development of our resources …and that we must totally deny ourselves of the fiscal flexibility to run a deficit budget.”

And he went on to speak of the effect of these doctrines; the selling off by those affected by these doctrines of our great social and public assets in South Australiathe water, the electricity, the winding down of our public participation in the forests, the housing through the Housing Trust, health, education. Don spoke of South Australia, but of course it happened all over the country.

I pause for one moment to record that Don Dunstan gave the right to publish his speech to Australian Options, slightly edited by him, and to print an interview with him, headed “A Healthy Public Sector is the basis for decent Justice”.

I add that Australia is a country which demonstrates the growth of global capitalism with extreme clarity; it is also one of a very few countries which has never legislated for a Declaration of some Human Rights (save for a very recent and very limited Bill in the ACT) . I suggest there is a connection.

I turn now to the question of the relationship of our rights and the law.
This country was colonised by Great Britain and contrary to the facts of the matter the lands of the Aboriginal people were treated as terra nullius . The land was taken by the colonial power. Most of the people were driven into reserves and many had their children taken away; many were killed, either by arms or by introduced diseases; their culture was based on their land and overwhelmingly they lost their land. In the sixties there was the beginning of some change in attitude all over the country. The referendum to give Aboriginal people the right to vote in Federal Elections was carried with huge majorities, it was followed by a growing awareness that Aboriginal people must be given some rights of self determination.

ATSIC was set up, it was chaired for some years by that wonderful South Australian lady Prof. Lowitja O’Donoghue.

It was an effort at self determination in certain aspects of life very important to aboriginal people.. Reconciliation became a major issue.

Now the government introduces legislation to abolish ATSIC. It has passed the lower House, but it has not yet been considered by the Senate. The government proposes that ATSIC should be replaced by a group of three Aboriginal people to be appointed by the government.

I say this, self determination is a fundamental for the Aboriginal people; the concept of the government appointing a committee of three in the name of self determination is a farce. But there is another matter. The ATSIC Act still stands.. The ATSIC Commissioners are still being paid because the Act so provides but they can do nothing because the government has taken away the funds and handed those funds back to the relevant departments. And they do that while the legislation still stands. I understand that the Commissioners are taking this point to the High Court. I would just add that I think that any government has the right to raise a question as to whether a body like ATSIC, or any other body, is the one best suited to the task and can, in this instance, talk with the Commissioners and can talk with other Aboriginal people, hold discussions, put up propositions, but I do not think it can abolish self determination.
I refer very briefly to refugees since in this hall last year we were addressed by the eminent human rights advocate Julian Burnside QC. But just let me say this.
2 of 7
Australian Options – Public Forum
Elliott Johnston QC AO
The rule of law – what it means and how it affects the rights of people
On 14th December 1967 the UN General Assembly voted unanimously (including Australia) for a resolution which repeated Article 14 of the Universal Declaration of Human Rights which reads: “everyone has the right to seek and enjoy in other countries asylum from persecution”. A Labor government voted for the Declaration in 1948; a Liberal government voted for its re- assertion in 1967. Thirty years on we are locking up those who seek asylum in our country from persecution. We are doing that pursuant to our law. The High Court has recently held that it is our Law, the Law made by this government, which says that a person seeking asylum, who has been locked up, whose application for a visa has been denied, who in strict accordance with the Act has written to the Minister and asked to be deported but who cannot be deported, because he is stateless and being so no other country will accept him, is to be locked up and this may be for life. I think that is rather an example of the conflict between legal rights and the concept of human rights.
As I said earlier the Declaration of Human Rights declares that all have a right to employment and to an adequate standard of living. What is our situation?
There is a view widely held that our economy is doing very well, some say better than any other. But certainly well. ACOSS, and other groups, say that our situation is that our rich are getting richer and our poor are getting poorer. Pretty obviously the rich are getting richer; few admit the poor are getting poorer, but I don’t hear many denials. Given the state of our economy how is it that this can happen?
The Australian Bureau of Statistics (August 2004 ) says that we have a labour force of 9.7 million people of which 6.9 million are employed full time, 576,000 are unemployed and 2,271,000 are employed part time. Of course I do not suggest that all those 2,271,000 wanted full time jobs. But I suggest at least 500,000 did. Many say more than that. But what it means is that more than ten percent of our labour force are unemployed or underemployed. How is this in such a successful economy? There are a number of explanations. 1. We all know that the banks have reduced jobs by closing branches and that some companies particularly in the clothing industry have moved a good deal of manufacturing overseas to countries where labour is very cheap. But I suggest that the main reason lies in the efforts particularly of big corporations to reduce both the number of workers and the number of permanent workers.
It is worth looking at a bit of history. Back in 1890 Samuel Griffiths, who became the first Chief Justice of the High Court of Australia, tried to persuade the Queensland government to declare it their duty to legislate for wages: sufficient to maintain the laborer and his family in a state of health and reasonable comfort. (Almost the UN Decaration) With Federation we got an Industrial Tribunal, and employers and
employees were ecnouraged to join organisations and in the latter case trade unions. Justice Higgins declared the first basic wage in the Harvester case and for nearly 90 years we had a Conciliation and Arbitration system which by legislation has ceased to exist, except in a very reduced form, since the early nineties. The consequence of our system was that the person who was in ordinary employment became entitled to a salary, to annual leave, long service leave, public holiday pay, sick leave, protection against unfair dismissal, workers compensation and in some cases maternity leave.

Global capital has set out to change the situation by abolishing conciliation and arbitration, by reducing the number of people employed and the number of people in that full employment which carries these various benefits.

It seeks to do this in two ways in particular:
1) Reducing the number of employees by the working of over time. Recently I went to the office of ABS. Among their new books is one: “Australian Social Trends 2003″. It states that over recent years they have seen a big rise in overtime and that now 28.8% of all full time workers ” work fifty hours per week or more” and they give figures for particular groups ranging from 15.8% to 52.3% of workers. They do not refer to the maximum number of hours worked but it is said that many work up to sixty hours per week. I acknowledge that there are perfectly legitimate reasons for some overtime: eg breaking down of equipment, but this extent is quite extraordinary. The overtime workers get higher overtime pay of course, at least where covered by awards, but it has many savings. Not only less workers with all the entitlements, but space, equipment, plant, tools, administration. It is widely recognised that the reduction of employment is fundamentally concerned with overtime. Faced with a considerable unemployment problem, France has recently legislated for a thirty five hour week and an abolition of over time except in special circumstances. Should we consider such legislation? Not necessarily exactly the same, but certainly some limitation of overtime.
2) Perhaps even more important is the effort of the employers to engage what are sometimes called casuals or part timers or non permanents or another group namely those provided by labour hire firms. As I earlier said there are 2,271,0000 of these or actually 23.4% of the total of the employed work force. There are a lot of disputes over the questions of what entitlement casuals have to other benefits such as annual leave, sick leave, public holiday pay, long service. Particularly intriguing are the labour hire workers. There is great argument as to whether these people are entitled to workers compensation if they are injured at work.
There was a case some two years ago in South Australia where a young lady approached a labour hire firm and obtained what I will refer to for want of a better word, as “employment” with a company growing tomatoes. She had no agreement whatever with that company and supplied nothing except her labour and a pair of gloves. She had a written agreement with the labour hire firm which provided that she would obey the instructions of “the employer”; which acknowledged that there was no employer/employee relationship between herself and the hire company, and acknowledged that she was not entitled to any annual leave,sick leave etc from the hire company. The hire company agreed to pay her a fixed amount for each hour that she worked. The amount that she received was quite significantly less than the award rate for an employee. The hire company had a written agreement with the tomato company whereby the latter made payments to the hire company ,out of which payment of the hourly rate was made to the worker. You will notice that the whole purpose of these agreements is to deny to the worker the status of “employee” and thereby to deny to him/her the rights of an employee. She suffered injury at work. I do not know whether she ever made a claim for compensation against the “employer” but she did against the hire company. It was fiercely contested, both at first instance where they lost and on appeal where they also lost. The SA court declined to follow a Victorian decision. I am sure hire companies will be amending their agreements.
There have been some cases recently where the employer has been held liable for workers compensation. The whole question of the entitlement of these various classes of casual or non permanent or part time or hire workers is a vexed question and urgently in need of settlement. In the meantime I think there is no doubt that the business world is saving itself plenty of dollars by way of working overtime and employing casuals. At the same time they are making problems not only economic but also family and social problems for the working people. It is the trade unions, including in SA. that are trying to do something about these questions. applying for award variations, seeking agreements etc.
The AMWU has recently done an in depth analysis of the position as to these types of employees in the manufacturing industries which they cover. In 1990 there were 1,130 million employed in those manufacturing industries. By 2003 it had fallen by 10.3%. The permanent jobs had fallen by 159, 900; the casual jobs had risen by 71,000. In the manufacturing industries there are alot of labour hire firm workers.There is some other data in Research Note 53 issued 16th September 2004 by the Parliamentary Library of the Federal Parliament. It reports that since 1988 54% of all new jobs created have gone to casual workers.
The position of the Federal government is that it gives no attention whatever to the question of overtime or the casual groups. It is intent on doing away with what remains of arbitration; it supports the Australian Workplace Agreement system which it has legalised by legislation. The AWA is simply the agreement prepared by the employer without any input from other interest. The worker applies for a job; the employer produces the Australian Workplace Agreement; it is take it or leave it between what is often a very wealthy corporate employer and an unemployed worker. On the 28th September 2004 The Advertiser reported:

“The Federal government will inject millions of dollars into luring workers away from unions and onto contracts under a Workplace policy”. Workplace Relations Minister Kevin Andrews will announce today a 12 million package to increase the number of workers on Australian Workplace agreements. The government will also unveil plans to protect small businesses from unfair dismissal and redundancy laws”

This is simply our Government acting on behalf of global capital. It is fundamentally opposed to the Declaration of Human Rights, to declarations which have in the past been supported both by Labor and Liberal governments and incidentally opposed to the ideas of our first Chief Justice of the High Court expressed more than 100 years ago.

The other aspect associated with the poor getting poorer is the treatment of those who are unemployed or those unable to seek employment because of ill health or disability. It is not an area which I have greatly studied. I will say just this. The payments are low; the conditions are extremely strict; the penalties for breach are draconian and the efforts to find work for the unemployed are nil.

There is another matter which I think is universally admitted and that is that the number of homeless people is increasing alarmingly. That surely indicates that the poor are getting poorer.

The evidence is overwhelming that the rich are getting richer.

I was quite astounded recently looking at The Weekend Australian of 18th-19th September 2004, page 38. The page consisted of four different articles and the conclusion of two other articles. Five of them were either mainly or wholly directed to increased pay for corporate leaders. Chief Executives of the 4 main banks were said to have annual salaries of $7.4 million, $7 million, $4.426 million and $2.482 million and the Chief Executive of Macquarie Bank $9.089 million. In quite different and unconnected articles it was said that the Managing Director of Origin Energy received $2.44 million for his years work; the Chief Executive of Bluescope Steel $4.4 million; the Chief Executive of Billabong $1.4 million, and it was said that Mr Ahmed Fahour, ” the 37 year old wunderkind ” (whatever that is )” poached from the local operations of the world’s biggest bank, CitiGroup, was paid $13.3 million in a golden hello just to sign on the National Australia Bank”. I have also read that Mr Packer is about to invest $55 million in some not highly useful British enterprise. Recent reporting from the 4 main banks has some interesting information; together their after tax profit is more than $11 thousand million; the percentage of shares held by their top five shareholders range between 30% and 51 %, and each of their top shareholders is a USA banking group.

Why is it that our laws relate to the question of wages of ordinary workers and are silent on the question of returns for Senior Executives, Company Directors and such like? Why cannot the Industrial Court deal with these matters.

Why is it not possible to amend the tax act so that companies are quite free to pay such amounts as they like to their Directors and Executives but with a proviso that x amount of dollars is to be treated as expense and the balance to be paid out of profit?

In 1998 our Federal government appointed a committee to report on business taxation. It’s report was published in July 1999 entitled: A Tax System redesigned, more certain, equitable and durable. The three members were all Company Directors. The Chair was John Ralph AO, who at the time was Chair of Foster’s Brewery and Pacific Dunlop, Deputy Chair of CBA and Telstra and Director of BHP. I make no comment whatever about the members who were no doubt highly intelligent, but none of them were representative of other than corporate interests. I should be very surprised if any government appointing a committee to report on the tax on wages appointed three workers without other interests having a say.
The Committee, which incidentally placed great emphasis on the globalisation of the economy, recommended a reduction in company tax to 30% (which in fairness I should add the government had told them it desired), it went along with the dividend imputations credit which Keating had introduced ( but I should add also in fairness that at the time he said that the company tax rate should be raised to the highest individual tax rate which at the time I think was 48% ). The 30% tax rate is the lowest company tax rate which has existed since at least World War 2. When the Government actually introduced it they were able to say (and said) that it was recommended by this highly expert committee. The Report (which I produce)
is too long to discuss. But I would like to be able to draw attention to some matters which I respectfully think say a lot about the pro-corporate attitude of the reporters.

However, the matter that I want to draw attention to is the enormous effect of dividend imputation credits (which they endorsed). When the company system was being developed the biggest concern was that if people were involved in what today we would call a partnership, they would not only share the profit but they would be responsible for the losses and so the limited liability company was formed and has of course become the dominant form of company. A shareholder must pay 100 % of the price of his share, but he or she is a totally different person than the company. If the company goes bankrupt the shareholder is not liable at all. They are two entirely different persons. So for years the company paid tax on its profits and the shareholder paid tax on the dividend.

Dividend imputation credits means something entirely different. The company declares a dividend and providing that dividend is paid out of that current years profit, it can fully frank the dividend with a credit which (when the tax rate is 30%) is 3/7ths of the amount of the dividend. Not all dividends are fully franked but 90% is a very reasonable percentage. In preparing the tax return the franking credits are added to the income; the tax is calculated on the resulting total and the total of the credits is then deducted from the total. So A and B each have a yearly taxable income of say $50,000. A’s is wages, B’s is dividends, 90% fully franked. At the current tax rate A’s tax is just over $11,000, B’s tax is nil. When I did this calculation it occurred to me that it would be fascinating to find out what B would have to receive in dividends, 90% franked, before he paid the same proportion of his taxable income in tax as A. The answer is $300,000. He would then pay the same 22% as A pays. I am sure that there can be other matters argued concerning the tax system, but I believe that this is a rather important one.

There is absolutely no doubt that the reason for the development of the limited liability company was to completely separate the personality of the company from that of the shareholder. The shareholder may buy his shares one day before the company declares its dividend and sell them a few days after. The shareholder gets the dividend and he gets the credits. Think of what this does for people who hold 50,000 shares in BHP or ANZ or Fosters etc. The rich are getting richer for all sorts of reasons and some of those reasons are associated with changes to the law and some are associated with failure to make changes. The poor are getting poorer for similar reasons.

Let me turn to two quite different matters.
In 1945 our Federal Parliament passed an Act ” To Approve the Charter of the United Nations” . It was an exceedingly simple act. Four sections only. The last approved the Charter and the Charter was then set out in full in the schedule. The Charter has been amended on a few occasions since and each time the Australian Parliament has passed an Act which records and approves the alteration. Article 39 of the Charter provides that the Security Council: ” shall determine the existence of any threat to the peace, breach of peace, or act of aggression” and shall decide the measures to be taken to maintain or restore peace and security. Article 25 of the Charter reads: ” the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. And Article 51 provides that: “nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by the members in exercise of this right of self defence shall be immediately reported to the Security Council and shall not in anyway ay effect the authority and responsibility of the Security Council ….. to take at any time such action as it deems necessary….”.

Koffi Anan has said what is obviously true, that the invasion of Iraq was illegal. It was obviously so. Iraq, had not made an attack on the United States, on Great Britain or Australia nor threatened to do so. It is acknowledged that Iraq played no part in the attack on September 11 in the United States. The United States, recognising the role of the Security Council in relation to such matters, tried to convince the Security Council to resolve that there should be force used against Iraq. It clearly failed to convince and, in fact, when it became clear that it would not do so the US decided to withdraw it’s resolution (to avoid defeat) and, instead, to launch an invasion. The right to live in peace is a very fundamental right. A right of all people. Our right and the right of the Iraqi people is being trampled on by the aggressors. It is somewhat unclear to me why it is that our government can act in direct opposition to the terms of a Charter which has been approved by our Parliament on several occasions but apparently it is so.

That means that our law is fundamentally at odds with the Charter of the United Nations developed and adopted by people the world over who were determined to seek peace after two world wars.

Finally I refer to a matter which arose perhaps thirty years ago.

Scientists began to express concern about threats to our environment. They were concerned about climatic changes associated with what was called “greenhouse gases”. There was debate and discussion. Finally relevant countries met together in Kyoto and discussed the problem and made a decision usually referred to as The Kyoto Accord, which called upon the major countries to make laws to limit the production of greenhouse gases in their country by certain proportions per year over a certain period of time. Most countries have accepted the Accord; Russia as late as last week. The United States and Australia refuse to adopt the Kyoto Accord.

This question is crucial for us for two main reasons:
1) we produce the greatest quantity of greenhouse gases per capita of any country in the world.
2) Scientists consider because of our geographic situation in the world we face greater threats to our environment from the climatic changes than most other countries.

Why does the Howard government refuse to adopt The Accord? To adopt it would require cuts in the burning of oil, coal and gas.

I quote The Weekend Australia 2-3 October 2004 page 45 under the heading Russia’s Kyoto Deal puts heat on Howard and Co : “Russia’s decision on Thursday to sign the Kyoto Protocol has put fresh pressure on the Australian government and business to accept measures such as carbon trading and taxes that would penalise them for emissions……. ratification of Kyoto by Australia would accelerate the growth of natural gas at the expense of coal …the losers would include BHP Biliton, Rio Tinto and WestFarmers”.

They are three of the biggest companies in Australia and two of the biggest miners (possibly the two biggest). The influence of such companies on the government and the government’s blind following of US policies explains its attitude to Kyoto.
I repeat what I said earlier, I believe in the Rule of Law.

I also believe in justice and the rights of people. I realise that not everybody agrees on exactly what those rights ought to be or on exactly how they should be enforced. I think we agree that we do not want our environment greatly harmed by climatic change ( or indeed other changes). I think we believe that it is unfair for the rich to get richer and the poor to get poorer at the same time. I think we have an interest in peace. I believe that we do not want to see people locked up, deprived of all liberty because they are attempting to avoid persecution. I think it is crucial in all of our interests that the Aboriginal people and non Aboriginal people become totally reconciled and that the Aboriginal people attain justice and fairness.

We have many problems. We have to find the way forward. I think that we have to end the rule of global capital, its domination of our society. I think we have to talk with others about how this can be achieved .

May I respectfully remind you of the last words that Mr Dunstan used in his great speech to which I have referred. After speaking about the power, the operation, the ideology of global capital he concluded with the words:

“We intervene – or we sink.”……….

I respectfully agree.’

From the website of the Magazine Australian Options Discussions for social justice and political change

http://www.australian-options.org.au

Elliott Johnston was a founding editor of Australian Options

See earlier on this blog including the book ‘Red Silk’

WorkChoices was necessary as regulation for unlimited freedom for profit making and undermining unions.

Turnbull was to hide WorkChoices 2. With Abbott the contest is back in the open.

But the Murdoch press weekly has propaganda “Abbott pledges fair deal on IR.” (The Australian front-page headlines 17/2/2010).

In 2010, globalisation is slowly recovering from one of the severest capitalist financial crises since the 1930’s depression.

Rudd’s stimulus reduced the impact of the GFC crisis.

Australia technically was not in recession, but many regions were.

Workers everywhere were made redundant, forced onto shorter hours or part-time, feared for job security and had living standards attacked.

Capitalism’s everpresent drive for capital accumulation and placing profits before human needs is a key determinant in the politics of work.

The dominant global corporations want to recover their profits and in resources will act ruthlessly to destroy the beginnings of workers bargaining through their unions.

Take one powerful corporate association regularly on the front page of the Murdoch press, the Australian Mines and Metals Association.

Chief executive Steve Knott (front page ‘Big miners want flexibility’ Australian 23/2/10) wants employers to make ‘greenfields employment contract deals’ without union involvement.

The powerful companies demand changes to the Fair Work Act for immediate penalties against their workers who take unlawful industrial action (as opposed to the current return to work orders and penalty processes).

The miners old cry is resurrected that ‘Australia’s reputation as a reliable supplier of mineral resources is being threatened by “damaging industrial action” in the sector.’

Knott says where industrial action is unlawful, workers should immediately be vulnerable to penalties, for example infringement notices payable within 28 days, like the anti-union repressive Building Industry Act, the model that they push.

It was who Abbott initiated the repressive policing of building workers to destroy union organisation.

The Building Commission (on this post see ABCC) interrogates in East German Stasi-like means for the prosecution of union organisers and workers legitimately going on strike against unjust building corporations.

These are severe restrictions against the right to strike, yet to be repealed.

The wild exaggerations of strikes are re-cycled. The reality was few strikes, as 99.5% of time there were no strikes in the building industry.

Howard’s WorkChoices cemented one of the world’s most repressive regimes against the right to strike.

The human right to withdraw your labour with others to bargain and to not be ordered back to work under the cry of unlawfulness and your union is fined is critical for union bargaining under capitalism.

Rudd/Gillard kept this repressive anti-strike regime (you can see in posts on this blog).

The repression continues against strikes because unions did not achieve all the essential rights under the Fair Work Act.

Regular ‘orders to return to work’ and fines for past legitimate but ‘unlawful’ disputes are still being made.

The AWU is being sued for a legitimate stoppage by the Employee Ombudsman, a Howard appointee (kept by Gillard) a former SA Employers Federation and Liberal party and IR warrior.

Despite these current restrictions, the giant corporates want protected action further limited legally by requiring that the FWA only grant ballot applications where genuine bargaining has been exhausted – more legal technicalities.

Freedom of association in a democracy means that workers, employees can get together, meet and organise in unions around their claims in their interests and withdraw labour if necessary.

WorkChoices made it impossible to have collective bargaining when a powerful employer refused and was backed by corporate lawyers.

Abbott will try again to finish off our unions.

He will weaken further workers collectively to be effective in bargaining and against employer injustice.

He will unwind employee minor FairWork protections in the name of a free labour market. http://www.actu.org.au/

‘We will seek to renew our former mandate to take the unfair dismissal monkey off the back of small business and to allow workers and managers to make individual employment agreements that are fair.’ (Abbott Australian 1/3/10)

Many Australians already oppose this.

The ACTU shows: ‘The poll of 2,099 working Australians finds fewer than one fifth (18%) believe it unlikely the Liberals will reintroduce WorkChoices.

And more than half (53%) believe it is likely or very likely Tony Abbott’s Liberals would reintroduce WorkChoices.’

Australians already have concerns about Abbott’s IR.

(i) The potential cuts to wages and conditions.

Young workers would be even more vulnerable. Abbott will scrap minimum 3-hour shift requirements.

Liberals attack minimum awards and penalty rates are to be abolished.

Many again will have take home pay reduced.

88% cannot see wages keeping up with costs of living under Abbott.

Despite his saying there will be individual agreements based on Labor’s ITEA arrangements with a no-disadvantage test and it will be fair, no unions are allowed.

It is another big lie that under Abbott ‘no worker shall be worse off’.

ii. Australians are opposed to employers having more ‘flexibility’.

Management want even more power to dictate working hours. Workplaces where you can work any 24 hours at the cheapest rates. More little Hitler HRMs.

82% of employees want more job security, not less.

Flexibility under WorkChoices meant a ban on employers and unions agreeing in a collective agreement about matters between a union and the employer – prohibited content returns.

iii. Australians do not want a workplace where the employer can unfairly dismiss.

Too many are sacked at will harshly and unreasonably, rather than the respect for the individual to be treated fairly.

A right to argue your unfair dismissal case and be possibly be reinstated is fair.

For all the Howard years, with Abbott a proponent as Workplace Relations Minister, the big lie, the ideological chant, that ‘taking away an employee’s right to go to a tribunal to argue unfairness somehow creates jobs!’

Peter Reith told me laughing his press secretary made up this big lie. Employers have to be free from unfair dismissal claims to create more jobs! Endlessly repeated this big lie surfaces again.

The real target is unionism.

The core of the individual contract bargaining for Abbott is they occur without unions.

The unequal power of the corporate resources – BHP Billiton, Rio Tinto, banks, Qantas, multinationals etc – in bargaining against each individual worker cuts deep into democratic values of the right to collective organisation.

This is clearly an attack on our core values as in the song ‘Solidarity forever.’

‘When the union’s inspiration through the workers’ blood shall run

There can be no power greater anywhere beneath the sun 

Yet what force on earth is weaker than the feeble strength of one 

For the Union makes us strong.’

The 2005 election version had: ‘They seek to crush our spirit 

Steal the workers’ hard fought gains 

Make us sign their dirty contracts.’

Every worker ought to have the right to bargain collectively and to be treated by the employer with respect and dignity and be supported as a union activist.

But the corporations wanted, lobbied for and got WorkChoices.

They know with Abbott they have a right wing warrior dedicated to their unfettered profit making.

Abbott will use the government’s resources and the state to give employers the authoritarianism at work they want against unionism.

Abbott has the political drive to finish off unions – what Howard couldn’t do for the corporates.

But in the last election the Liberals underestimated YRAW, how unions can organise socially in the community.

YRAW was not only the ACTU TV ads, but with thousands of unionists door-knocking and talking to workers also the battle of political values about work.

Social unionism campaigning and communicating on real workplace issues changed votes.

That WorkChoices was the key to the Liberals’ defeat is confirmed by research by Clive Bean and Ian McAllister. 2009 ‘The Australian election survey: the tale of the rabbit-less hat. Voting behaviour in 2007’ Australian Cultural History. 27: 2, 205- 218.

Can Abbott deceive voters to return to the Liberals with the propaganda ‘I will be fair? ‘

What Abbott and the right have is the political spin for the big lies, doublethink.

I cite the notion of ‘Doublethink’ in George Orwell’s 1984.

‘Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.

…the essential act of the Party is to use conscious deception while retaining the firmness of purpose that goes with complete honesty.

To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies—all this is indispensably necessary.’

One of Howard’s doublethink’s with Abbott was to chant anything his government did created ‘more jobs, higher pay’. Anything Labor did created fewer jobs lower pay…irrespective of the issues.

FUD tactics will be to the fore. Whip up Fear/Uncertainty/Doubt against unions.

But the Liberals’ fear ads did not work in 2007. Voters ignored TV images of so-called union heavies and strikes.

Political campaigning on IR issues remains a priority thanks to the corporates and Abbott. Unions will have to defend unionism.

Workers’ rights in Australia are falling far short of what was promised.

This struggle has as one task for unionists that with the Fair Work minimalist reforms to mobilise to have rights at work extended from Rudd/Gillard’s minimalist FWA changes and to secure some protection from the corporations.

Workers’ cynicism with Rudd/Gillard on IR is a criticism of right wing Labor refusing to go further against the power of the corporates.

Indeed, if Rudd/Gillard is to commit to ‘working families’ then many more rights for workers have to become labour law ‘for the future’, some minimum protections against the instability of capitalism.

Greens on the merits have good IR policies. Many union rank and file activists argue for support for a majority of the Greens in a new Senate.

Abbott is mobilizing his right-wing base and unifying corporate extremist PR. Still a believer in the US Republican tactics, Abbott with mass press and corporate backing, has organising resources.

Worker counter mobilisation, independent of the ALP, has to be built at work and in the community organising against the corporate power.

Deeper is the debate about capitalism in crisis.

I was interviewed on Abbott and Industrial relations policies on 3CR Radio on Sunday. This is to be replayed this week on community radio.

The Stick Together show Melbourne 3CR Sundays at 10 – 10.30AM.
Repeated Thursdays 6 – 6.30AM.

Australia’s only national radio show focusing on union and workplace justice issues.

Broadcast each week on the Community Radio Network, the satellite service of the Community Broadcasting Association of Australia, to stations nationally Wednesdays at 6.04PM.

http://3cr.org.au/

Update from ACTU 07 March, 2010 Media Release

‘$50 pay cuts for young workers on the cards with Tony Abbott’s plan to bring back WorkChoices

Australian workers will suffer cuts to their pay and conditions and lose protection from unfair dismissal under Liberal leader Tony Abbott’s plan to bring back WorkChoices, warns a new national union TV ad campaign launched today.

The new ads herald the beginning of a major effort by unions to remind Australians of the damage caused by WorkChoices and the risk of a return to the Liberals in the federal election due this year.

“We want to make sure the public is aware of Tony Abbott’s commitment to hardline industrial relations policies,” said ACTU President Sharan Burrow.

“Tony Abbott was a key Minister in the former Liberal Government that introduced WorkChoices.

“Now, he wants to bring it back. He just won’t call it WorkChoices,” said Ms Burrow.

At a recent meeting with business executives, Mr Abbott said he will remove protection from unfair dismissal for workers in small business and bring back individual contracts — two basic features of WorkChoices.

You know, at four elections running, we had a mandate to take the unfair dismissal monkey off the back of small business and we will once more seek that mandate. At four elections running, we had a mandate to introduce statutory non-union contracts and we will seek to renew that mandate.
Tony Abbott, 12 Feb 2010

Under the Rudd Labor Government, all workers, including those in small businesses, have protection from unfair dismissal and new AWA individual contracts are banned.

“It is very worrying that Mr Abbott recently promised a new policy that would enable employers to negotiate job contracts with school age young workers and dramatically reduce the minimum number of hours the workers would be paid,” Ms Burrow said.

“Mr Abbott’s new policy means employers would be able to call in young workers and send them home after as little as half an hour. It could reduce young workers’ take home pay by about $50 a week.

“The Liberals have also flagged changes to penalty rates which would put at risk the pay of hundreds of thousands of Australians who work public holidays, late at night and on weekends.”

Under WorkChoices, workers were pushed onto AWA individual contracts with 65% losing penalty rates and 25% no longer having public holidays.

“Working Australians and their families cannot afford a return to WorkChoices under Tony Abbott,” said Ms Burrow.

Check out the ACTU TV ad http://www.actu.org.au/

Labour Law

A majority of Australians believe a Liberal Government led by Tony Abbott-led will bring back WorkChoices, a new national opinion poll released today shows.

The poll of 2,099 working Australians finds fewer than one fifth (18%) believe it unlikely the Liberals will reintroduce WorkChoices.

And more than half (53%) believe it is likely or very likely Tony Abbott’s Liberals would reintroduce WorkChoices if they were elected, even if it was under a different name.

The poll finds that the top three concerns working Australians have about the Liberals’ expected return to WorkChoices if elected are:

1. The potential cuts to wages and conditions,

2. Less protection from unfair dismissal, and

3. Employers having more power to dictate working hours.

ACTU President Sharan Burrow said the results revealed people had deep suspicions about Tony Abbott’s support for hardline industrial relations policies and WorkChoices.

“Australians remember the damage caused by WorkChoices under the former Liberal Government in which Tony Abbott and Joe Hockey were senior Ministers,” Ms Burrow said.

“Under WorkChoices AWA individual contracts were used by employers to cut the take home pay and job conditions of thousands of Australians.

“Many young people, women and other vulnerable workers were sacked unfairly.

“And the pay of more than a million Australians declined in real terms under the Liberals’ changes to award wages.

“Employers had the power to dictate working hours and this put working families under extra pressure.

The ACTU poll conducted by Auspoll also found:

• 88% of working Australians say it is important that wages keep pace with family costs of living.

• 82% are concerned about their personal job security.

“The vast majority of working Australians are worried about maintaining their incomes and keeping their jobs after the financial crisis and this underlines their concern about the Liberals bringing back WorkChoices,” said Ms Burrow.

The poll is available to be downloaded at http://www.actu.org.au

Labour Law

I will look at in 2010 some of the specifics of the legal restrictions as played out already against workers and their unions trying with industrial action to collectively bargain over their claims and to defend their social and economic interests.

In an election year, the right to strike can be debated and MPs reminded of the principles to advance workers’ rights.

At a number of different levels, industrial relations practioners and labour law academics are publishing their conclusion on the FWA.

In 2010 you can read one example from Dr Shae McCrystal, Faculty of law, University of Sydney.

All involved in industrial relations and MPs and our DPM should assess it.

Unfortunately, the so-called merit and evidence-based policy making of our government does not extend to
this issue of the right to strike.

The DPM’s DEWR obscures with untruths, under instruction, the repression and fails to respond on merit to reasonable arguments.

The point is the Fair Work Act breaches accepted principles for the exercise of the right to strike.

As Howard’s early Workplace Relations Act was in breach of the ILO minimum labour standards, so was WorkChoices and so is the Fair Work Act, as comprehensibly show by Shae McCrystal.

You can access her detailed points in the Australian Journal of Labour Law 23 ALJR no 1 2010. She concludes:

“…the Fair Work Act does not comply with the obligation to respect the right to strike as required by ILO Convention 87.

To the extent that the FW Act provides for the right to strike through the protected industrial action regime, the federal model of industrial relations complies with international standards. Participants in the federal system may take industrial action free from potential liability in support of negotiations for a single-enterprise agreement provided that the claims supported by that action are permitted under the FW Act.

However, this limited ‘right to strike’ fails to ensure that workers and their organisations can take industrial action in support of the full range of objectives considered to be legitimate trade union objectives, contains substantial restrictions on access to protected industrial action and may impose excessive and disproportionate penalties on parties who take illegitimate industrial action.

ILO Conventions 87 and 98 operate on certain assumptions about the role of the state in industrial relations.

The standards presuppose a commitment by ratifying nations to collectivism, collective bargaining and the social role of trade unions who act as agents of workers generally.

In this context, voluntary collective bargaining by workers’ organisations, supported by the right to strike, should be the predominant form under which working conditions are established, with only limited interference from the state to encourage the parties to bargain or to resolve intractable deadlocks.

During the term in office of the former Coalition government, the WR Act failed to comply with the two basic requirements underlying the ILO regulatory model: collectivism and voluntariness.

…The content, form and level of bargaining were strictly controlled.

The FW Act represents a substantial retreat from the hostility to collectivism which reached its apogee in 2006 with the Work Choices amendments to the WR Act.

However, there is no retreat from the ongoing failure of the federal industrial relations system to respect the autonomy of actors in collective bargaining.

The majority of non-compliance problems identified in this article stem from an underlying refusal to accept the obligation expressed in Art 4 of Convention 98 to promote voluntary collective bargaining, supported by the right to strike protected by Convention 87.

Acceptance of this obligation would require extension of the right to take protected industrial action to encompass the full range of action supported by ILO standards.

This would involve allowing employees and their organisations to take industrial action in support of a broader range of topics including payment for industrial action, right of entry, or even requirements for an employer to act in an environmentally responsible manner.

It would also encompass industrial action undertaken to support the desire of employees and their organisations to engage in collective bargaining at an industry level.

The obligation would not mean that employers would have to agree to these demands, but the principle of autonomy dictates that bargaining agendas be self determined.

In addition to a broadening of the scope of collective bargaining, acceptance of the principle of voluntary collective bargaining requires acceptance of the principle that while the state can intervene to encourage parties to reach agreement, it cannot impose obstacles which hinder the right to strike.

Any prerequisites to industrial action should be designed to suit the purpose for which they are instituted and must encourage the parties to voluntarily agree.

Ballots imposed to ascertain the will of the majority of members of an organisation before taking industrial action should not be designed to serve alternative agendas like policing bargaining behaviour or undermining the autonomy of employee organisations.

The restriction of the autonomy of the bargaining parties under the FW Act directly reflects the inability of the federal government to accept the logic of the right to strike with its concomitant potential for industrial disputation.

Commitment to a free market bargaining model based on the principles of freedom of association requires the concession that employee organisations must be able to exercise market power.

This concession would require the federal government to back away from its preferred level of agreement (single enterprise), from the restriction of subject matter of such agreements and allow the parties to negotiate these matters based on their relative bargaining strengths.

It is the failure of the system to fully embrace the voluntary and free market aspects of the ILO model that generates ongoing compliance difficulties concerning the right to strike.

The failures of compliance identified in this article cumulatively point to a failure in Australian labour relations to acknowledge the right to strike as a tool of bargaining in the context of a voluntary free market based system of collective bargaining.

The tool is not designed to be used as an instrument of policy or as a right conceded only in the context of an extremely limited bargaining scenario where outcomes conform to those considered appropriate by the state rather than those agreed between the parties.”

Labour Law

http://column.global-labour-university.org/

Labour Law

It is reported in the Age yesterday that “A 24-year-old Wangaratta man was hit by concrete as he cleaned out a concrete pump hose yesterday, and a 21-year-old plumber died in hospital on Monday night after receiving an electric shock while working at Stawell in western Victoria last Friday.

Michael Birt from WorkSafe Victoria says 28 people have been killed on the job this year, 11 since October. ”Safety issues are being ignored and it is killing workers. ” Mr Birt said.

Yet Government’s do not do enough on OHS. Here is a re-written version of my concern on OHS ‘harmonisation’.

First PM Rudd 7/11/09.

“Let this be a warning to all in corporate Australia that when it comes to your responsibilities for the safety of your workers, nothing, nothing should ever allow that to occupy a second place. It should be the first responsibility of every company. Companies cannot ignore their duty of care to their workers. The Government that I lead will do everything in our physical power to ensure that that is the case in the future.”

But as is usual this is Rudd “spin”.

Unions have a proud history of campaigning for workplace health and safety and enforcing prevention practices. Two teenagers died recently insulating homes. The ACTU led protests (see this blog).

Public policy is strengthened with union principles that place ‘health and safety of workers as a priority before profits, property and management prerogative’.

The union submissions to WorkSafe from the ACTU, Unions NSW and unions and OHS professionals reveal how existing state OHS standards will be trashed.

This is in the draft Model Safety bill. DPM Gillard’s national OHS ‘harmonisation’ of State based OHS laws

Howard started this ‘harmonisation’. His spin was to cut red tape for national corporations, not to improve OHS to protect workers. ‘Harmonisation’ has become the lowest common denominator with second-rate health and safety changes.

Unions show in detailed, evidence-based arguments, how the draft Model Safety bill undermines existing OHS legal rights. The worst performing employers will be able to avoid OHS obligations. See posts on this blog.

Unionists are entitled to rely upon repeated COAG assurances of no watering-down. The ACTU believes national OHS laws should not result in a compromise or reduction of protections or standards for workers in any existing State jurisdiction.

http://www.rightsatwork.com.au/ohscampaign

Corporate lawyers for those employers injuring, maiming, causing ill health or killing for profit, will get a myriad of new legal loopholes. A national OHS system is to be established, but allowing employers to not comply with existing States’ based OHS Acts.

These State OHS laws have stood the test of 25 years, supported by employers and unions. State Liberal Premiers did not water them down.

Unions expose hundreds of details for the worse. Here are a few.

Take victims like Bernie Banton. The draft Model denies his union or his labour lawyers the right to prosecute his companies’ OHS breaches – Hardies goes free.

Democratically elected worker health and safety representatives like Bernie Banton will have their existing powers to implement prevention programmes and to stop unsafe work reduced.

Bernie Banton’s union organiser will have so many legal loopholes to follow that right of entry is denied. Health and safety organisers will be denied response to imminent risks.

Loopholes abound such as “so far as is reasonably practicable” on the employers’ duty to consult on OHS. The obligation is and should remain absolute.

The draft stresses ‘Safety’. ‘Health’ is downgraded. Rather than protect the future health of workers with workplace health risks eliminated, the future is that of Bernie Banton’s workplace where Directors deny and cover up health risks and can kill in the pursuit of profits.

DPM Gillard cites increased penalties, but wealthy corporations can still easily pay such fines. Bernie Banton would be angry that there is no attempt to put behind bars directors responsible for deaths at work. Read Matt Peacock’s Killer Company James Hardie Exposed.

The impact at law of the onus of proof proposed favours the corporation or government, which has enormous legal resources. The draft Model reverses the rule that the employer has the responsibility for a healthy and safe workplace and bears the onus. It is a retrograde step. Compliance against employers in breach has to be strengthened, not weakened.

The draft Bill removes the long held union rights to protect members’ OHS interests. It does not even meet ILO obligations for employers and unions to jointly set OHS standards.

This Model Act does not attempt to strike a balance between an employer’s and worker’s rights and obligations. It does not protect or improve workers’ rights. It even champions employer rights to the detriment of good workplace OHS for employees.

The details of the draft Bill are so bad it is like an OHS version of parts of WorkChoices!

State Labor leaders are not challenging the watering down of their own State OHS provisions because they are threatened with withdrawal of Federal funds unless they comply.

Despite many employers, academics, and OHS specialists supporting the unions’ case for strengthened national OHS laws, the DPM stands put with support from employer lobbyists.

In fact, stronger OHS laws are needed – the more so with the capitalist crisis. In a Victorian Trades Hall Council survey 77% of survey respondents said that the global crisis had caused deterioration in OHS standards. Companies are taking short cuts in order to reduce costs. They are avoiding OHS obligations and will do so even more if the legal standards are weakened.

In this capital accumulation upturn, the drive for the exploitation of workers’ labour-power will increase in the pursuit of profit recovery, again putting OHS standards at risk.

Unions say ‘No to Second-Rate OHS’. It is prudent to remain with existing State systems until ‘best practice’ standards are developed nationally with union agreement in 2010.

It is wise counsel for DPM Gillard to use discretion not to proceed in December with this Model. But the ALP is likely to push it through and sell-out workers’ OHS rights at work.

Report on 24/11/2009.

yraw voting-badge